“One of the reasons I’m supporting Donald Trump this year is, number one, he’s going to put originalists on the Supreme Court, people that believe in fidelity to the Constitution, separation of powers, co-equal branches of government.” So said Sean Hannity, the popular conservative media personality, in a political advertisement for the Republican presidential candidate in September 2016. To the surprise of most pollsters and many political scientists, Trump prevailed, and as promised during the campaign, nominated an avowed originalist (Judge Neil Gorsuch) to the Supreme Court.

The nomination of an originalist from a list of judges compiled by the Federalist Society and the Heritage Foundation is not surprising. The more interesting question is this: how did it come to be that originalism is so readily identifiable to conservative voters such that Hannity can reference it in a campaign commercial without further explanation?

Part I, setting forth the concept of constitutional translators is here. In short, that post tentatively explored the concept of "constitutional translators," mezzo-level elites who take sophisticated constitutional law and legal theoretical ideas and arguments and repackage them for a lay audience in a way such that they are more easily digestible. This follow-up post sets forth a nascent theoretical framework for thinking about the role these actors play in our constitutional politics and looks at how Charles Murray and Mark Levin translate constitutional conservatism.

...

[A]rguments about constitutional theory and interpretation, such as originalism, differ quantitatively (they are not talked about as much by elites as other political issues) and qualitatively (it takes more effort to translate these arguments than (say) concerns about immigration). A crucial force, then, in educating the public on these complex issues is partisan media. The conservative media ecosystem has played a significant role in this development as consumption of conservative media is inherent to that group identity. Constitutional arguments, therefore, are ripe for “translation.” From the 1950s to the 1970s, these arguments largely flowed from conservative media activists acting as as constitutional translators for the engaged conservative public. Later, as the conservative media ecosystem grew, the translation became more complex: from sophisticated academic theory and conservative legal elites to conservative governing elites to constitutional translators to conservative voters.

An instructive example of this downward flowing process from academics and elites to constitutional translators to the engaged public (who are most likely to read these books and engage with them) can be found in Charles Murray’s 2015 By the People: Rebuilding Liberty Without Permission. ...

Murray’s book is further instructive as he relies on the scholarship of academic originalists such as Randy Barnett, Michael Greve, and Gary Lawson (271, 272, 278, 279, 285) and libertarian law professor Richard Epstein, (285, 286) to construct his argument. Here, one can see the theory and developmental themes in action: originalist academics—named explicitly in the acknowledgements and footnotes—are relied upon by a constitutional translator who opens his book with the incantation “that we are at the end of the American project as the founders intended it” (xi) and deems the audience for his book “Madisonians [or] those people who are devoted to limited government. In today’s terminology, that includes classical liberals, libertarians, and many conservatives” as opposed to “Wilsonian progressivism” (xiv, xv, emphasis in original). Finally, Murray contends the “latest received [scientific] wisdom about best practice is more often driven by ideology and expertise” and that technocratic bureaucrats—here Murray invokes public choice theory—are inevitably biased (180-183).

Murray is a talented constitutional translator, but based on certain metrics, Mark Levin maybe the most important of the current conservative constitutional translators. Levin, who served in the Regan DOJ, did not follow a path into academia or the bench, as many of his colleagues did. Instead, Levin built something of a media empire as a particularly provocative conservative commentator. One instantiation of this empire is his long list of New York Times bestsellers. Men in Black, with an Introduction by Rush Limbaugh and an Afterword by Attorney General Meese, trained Levin’s sites on the Supreme Court. ... [discussion of Levin's book follows]

An interesting assessment, as usual from TerBeek. But I would say, in the case of originalism, that a crucial "translator" was Justice Scalia. The Court's decisions are reported widely enough that politically engaged people follow them to some material extent, and Scalia's role as an originalist and also a conservative luminary meant that politically engaged nonlawyers were likely to pick up the idea of originalism from him (at least, more likely than from Charles Murray). Scalia became associated, in the mind of conservative nonlwayers, with resistance to what they saw as the Court's constitutional errors (and, in the case of gun rights, for example, with what they saw as the Court's constitutional successes). This association was further both by Scalia's sharp and accessible opinion writing style and also by Scalia's off-the-Court commentary, which was widely reported by ordinary media. So I would add that Scalia served as his own "translator" (quite consciously).

The emergence of a new form of originalism has sparked an interest in the theory’s past that is particularly welcome as developments on the Supreme Court and in the Republican Party unsettle the theory’s place in American law and politics. Our understanding of the theory’s development, however, has been limited by an unfortunate and unnecessary division between what are now two separate histories of originalism. One history examines the theory’s development in academia and emphasizes the influence of principled argument. A second investigates its role in politics and highlights the role of conservative interests. This review essay identifies this division and offers two ways to create a productive dialogue. It first suggests we consider how political interests have shaped the academic debates over originalism by influencing the institutions that produce those debates. Second, it urges a reconsideration of how and why academic debates have shaped the theory’s political uses. There is good reason to consider whether principled constitutional argument, and thus the debates of academics, has shaped the political uses of originalism even if the theory’s most important advocates were motivated mostly–or even entirely–by the pursuit of political advantage. Using these approaches to identify the reciprocal influence of politics and principle on originalism’s past can help produce the new history of originalism we need to understand, evaluate, and influence the theory’s role in American law and politics.

(Article available only for subscribers, but a draft is available on SSRN, here).

The President of the United States owns a posh hotel in the shadow of the White House from which he derives foreign-government revenue. Along with income and benefits from many other domestic and international businesses, this revenue stream creates the very conflict of interest that the founding fathers wanted to prevent by writing into the Constitution that “no Person holding any Office of Profit or Trust … shall, without the Consent of the Congress, accept … any Emolument … from any King, Prince, or foreign State.”

Members of both the House and the Senate have filed a lawsuit seeking to enforce this provision. These legislators allege that the President has violated their right, guaranteed in the text of the Constitution, to vote on and authorize the President’s acceptance of “emoluments.” They ask that the court require the President to obtain Congress’ consent before accepting benefits from foreign governments or divest himself of all interests in those businesses. Before the court may rule on this case, however, the plaintiffs must demonstrate that they have standing to sue. As a matter of text, precedent, and policy, these plaintiffs should have standing in this case.

The constitutionally required standing elements derive from Article III’s requirement that the judicial power only extends to a “case” or a “controversy.” As a matter of original meaning, there are good arguments that the founding fathers simply wanted to avoid sham or hypothetical lawsuits. There is no doubt that there is a real, live controversy between these members of Congress and the President.

Dear Nonoriginalists: Please, please, keep making these arguments. We know you don't really think they are decisive (indeed, Professor Segall's post goes on to make mostly policy arguments). But they show two things. First, people think that originalism is possible (at least as to some clauses) -- despite what some historians and commentators try to tell us. It's not quixotic to pursue the original meaning of provisions that are not obvious on their face. Nonoriginalists (and presumably their audience) don't think it absurd or incoherent to make claims about the original meaning of the emoluments clause or the case-or-controversy provisions (both of which are disputed and not obvious). So when originalists make such claims, they aren't acting the part of some cultish outliers, but rather are part of the ordinary legal discourse. (The difference is that originalists think these claims actually should be decisive, or at least more decisive.)

Second, people think it matters, at least to some extent, what the original meaning is. Otherwise, nonoriginalists would not be making originalist arguments. Presumably they are not making them for the benefit of a handful of originalist scholars. Rather, there's a sense that original meaning has some weight -- perhaps not decisive weight, but some weight -- in conventional legal argument. Thus, again, originalists are not cultish outliers, looking to some oddity that no one else thinks relevant. Rather, there's simply a dispute about how much weight originalist evidence should carry. The gap between originalists and nonoriginalists, when it comes to argument about specific constitutional provisions, is narrower than it might seem.

That's important because at a theoretical level it's often portrayed differently. Recall the Gorsuch hearings. Much of the argument against originalism as a general matter had the tone of either (a) originalism is impossible or incoherent; or (b) originalism is a bizarre approach that focuses on things no one else cares about. But when the discussion turns from the theoretical to the specific, both of these claims evaporate (at least if nonoriginalists think originalism helps them get where they want to be).

So please, nonoriginalists, keep making originalist arguments. It shows you really care.

06/27/2017

It is striking that in Monday's Trinity Lutheran v. Comer, the Court and the concurrences failed even to mention the Amendment at stake: the Fourteenth Amendment, not the First. The Court left out even a nod to Cantwell v. Connecticut, which held that the Fourteenth Amendment's Due Process Clause incorporated the Free Exercise Clause against states, though Justice Sotomayor's dissent mentioned Cantwell as part of another argument in a footnote. Not even Justice Thomas, who wrote separately in Trinity Lutheran, and who just last week noted the possibility that the Privileges or Immunities Clause might incorporate against states a refined version of the takings principle expressed in the Fifth Amendment (see also here), gave any attention to the Fourteenth Amendment's original meaning.

What makes this failure even more striking is that despite the Court's lack of direct concern with the original meaning, its closing appeal to history fits hand-in-glove with my understanding of the Privileges or Immunities Clause. The Court quoted H. M. Breckenridge's early-nineteenth-century condemnation of Jewish citizens' "odious exclusion from any of the benefits common to the rest of my fellow-citizens," and earlier in the opinion noted the reference in Lyng v. Northwest Indian Cemetery to "denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens." Whatever we make of the meaning of the "free exercise of religion" in 1791, the prohibition of such exclusions is the central meaning, as I read the evidence, of the Privileges or Immunities Clause. Much more could be said on the historical application of equal-citizenship principles to religion: George Edmunds's references to religious discrimination under the Privileges or Immunities Clause prior to the Civil Rights Act of 1875, James Madison's proposal in 1789 that "[t]he civil rights of none shall be abridged on account of religious belief or worship," or Madison's 1785 protest against "degrad[ing] from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority."

Rather than a dubious Tinker-to-Evers-to-Chance daisy chain from Fourteenth Amendment Due Process to First Amendment Free Exercise to equal citizenship, the original meaning expressed by the Privileges or Immunities Clause offers a much simpler argument. To give similarly-situated fellow citizens of the United States different rights is just what it means to abridge the privileges or immunities of such citizens. One hopes that the briefing in Masterpiece Cakeshop v. Colorado Civil Rights Commission--or even the opinions!--will at least touch on the Privileges or Immunities Clause issues neglected in Trinity Lutheran.

Yesterday's array of results from the Supreme Court continues, among other things, the trend I noted here (and which the AP noted a couple of days later [via Powerline's post Is Neil Gorsuch the Next Justice Thomas?]): the alignment of Justice Thomas and Justice Gorsuch. Consider:

That's eight cases from one day (all contentious ones); in three of them no other Justices joined the Gorsuch/Thomas opinions. Plus one assumes that Gorsuch and Thomas were two of the votes for certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission [the gay wedding cake case]. The cases share a textualist/originalist/rule of law outlook with a generally conservative political orientation. It's an easy prediction that Justice Scalia would have agreed.

Actually it's easier to list the cases in which Thomas and Gorsuch did not agree:

Mathis v. Shulkin: Gorsuch dissented from denial of certiorari alone.

Hicks v. United States: Gorsuch concurred with the majority disposition [remand in case in which the respondent admitted error]; Thomas joined Roberts in dissenting.

It remains a small and early sample, but taken with the four cases discussed in the AP article linked above, it's hard not to see a trend. At minimum, Justice Gorsuch must have substantial respect and admiration for Justice Thomas' approach to law.

06/26/2017

The Environmental Protection Agency has long been a bete noire of movement conservatives. The story of "The Other Rights Revolution," the title of Jefferson Decker's important new study of conservative public interest litigation groups' attack on the regulatory state, supplies the bulk of the story. But of course dislike of the EPA wasn't limited to conservative lawyers. Tom DeLay would often tell reporters that his time as a suburban Houston bug exterminator led him to view the agency as "the Gestapo," a characterization he held onto until his resignation from the House after being indicted. And the EPA was helpfully offered by Mitt Romney when Rick Perry ran into a mental roadblock at a 2012 Republican presidential debate.

What Administrator Scott Pruitt calls his “Back to Basics” agenda would refocus the agency on narrow goals such as cleaning up toxic waste and providing safe drinking water — the kinds of issues that inspired the EPA’s creation in 1970 amid a public outcry about burning rivers and smog-filled skies. But it would abandon the Obama administration’s climate regulations, along with other efforts that Pruitt argues exceed the agency’s legal authority.

What is interesting is how Pruitt is explaining the changes: "EPA originalism" that will lead to "a restoration of [the EPA's] priorities."

06/25/2017

The travel ban case is headed to the Supreme Court by way of the once redoubtable Fourth and always activist Ninth Circuits, leaving revisionists to wonder how it might have unfolded had it made its way upward through Judge William H. Pryor’s Eleventh. Pryor’s view of the judicial role exhibits appropriate assertiveness within its sphere and a fitting humility beyond it.

Pryor’s perspective might consequently help advocates of judicial engagement and restraint move beyond one of the central difficulties in their disagreement, which is the tendency to veer into judicial supremacy in the former case and impotence in the latter. The travel ban illustrates one dimension of the problem, which is what happens when a court issues a ruling other branches believe impinges on their authority. Would the Trump Administration be immovably bound by it?

Recently in this space, I argued that constitutional meaning was liquidated by conversation between the branches rather than by the discrete and final view of the courts, with the judiciary considered as the last stop on a temporal line. I stand by that conclusion, but Pryor’s writings provide a subtler and richer account of the judicial role.

The account begins where I erred, which was in a truncated and flawed account of Marbury v. Madison. Using Marbury as an illustration of how presidents and courts once confronted each other more forthrightly, I repeated the strain of scholarship that holds that Chief Justice Marshall willfully misread Article III of the Constitution in order to avoid a confrontation with President Jefferson while manufacturing grounds for establishing the power of judicial review.

I write separately … to note my growing concern with our qualified immunity jurisprudence. The Civil Rights Act of 1871, of which §1985(3) and the more frequently litigated §1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law. Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs, 475 U. S. 335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well established in 1871 . . . that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U. S. 259, 268 (1993); accord, Briscoe v. LaHue, 460 U. S. 325, 330 (1983). Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” Imbler v. Pachtman, 424 U. S. 409, 421 (1976), unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U. S. 914, 920 (1984). …

In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute. In the decisions following Pierson, we have “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson v. Creighton, 483 U. S. 635, 645 (1987) (discussing Harlow v. Fitzgerald, 457 U. S. 800 (1982)). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under §1983, we instead grant immunity to any officer whose conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. … We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017).

Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U. S. 356, 363 (2012) (internal quotation marks omitted).

… Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

Now, of course, Thomas is writing only for himself, but I am glad to see somebody on the court asking whether the doctrine of qualified immunity is legally justified in its current form. I have suggested that the answer is probably “no,” but even if the court disagrees and ultimately concludes that the answer is “yes,” I think it would be good for the justices to give some attention to the issue and explain why exactly they think it is justified. (As I discuss in the paper, different members of the court have at times subscribed to three different justifications, though I think each of them is somewhat wanting.)

In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions). [ed.: article available here].

Associate Justice Neil Gorsuch has now written three opinions — a majority, a partial concurrence and a dissent. All three show the Supreme Court’s newest justice to be a confident, committed textualist with a distinctive writing style — and a justice who is not afraid to challenge his new colleagues. [discussing two opinions from this week plus this earlier one].

It's early to be counting, but Justice Thomas joined all three of these opinions.

When the nation’s Founders came together to draft a new national charter, they were profoundly concerned about both corruption of federal officeholders and foreign influence over the nation. They understood what a threat corruption posed, and they worried that foreign nations might attempt to meddle in America’s affairs, including by giving benefits to the nation’s chief executive to subvert his loyalties.

In response to those concerns, the Founders included in the Constitution the Foreign Emoluments Clause, which prohibits any person “holding any Office of Profit or Trust under [the United States]” from “accept[ing] . . . any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without “the consent of the Congress.” Although there’s been a great deal of talk about this Clause since Donald Trump’s election, there has been much less talk about five of its most important words: “the consent of the Congress.”

To the Founders, “the consent of the Congress” language was critical. By requiring federal officeholders to first go to Congress and identify the specific benefits they wished to accept from foreign states, the Founders ensured that an officeholder would not be the sole judge of his own integrity.

Moreover, and just as important, they also ensured that a federal officeholder’s acceptance of any foreign “Emolument[s]” would be transparent and subject to public examination, thus minimizing the dangers of corruption and influence that the Foreign Emoluments Clause was adopted to prevent. When Congress was first called upon to exercise this responsibility in 1798, one lawmaker explained its value in this fashion: “[i]f presents were allowed to be received without number, and privately, they might produce an improper effect, by seducing men from an honest attachment for their country, in favor of that which was loading them with favors.”

Although the refrain “we love our customers” has become a banal sentiment that reeks of insincerity, it captures a psychological truth that goes without saying (that’s why its constant repetition makes it sound so insincere). According to Trump’s lawyers, the prohibition on emoluments cannot extend to the sale of goods for “fair market value.” But transactions of that kind, no less than gifts and titles of honor, tend to elicit a sense of gratitude—in fact, such commercial transactions are likelier to have that effect than the patronage of someone who pays you a toll or other fee for performing your official duty. When people get paid for duties performed in office, they tend to regard the money as merely their due, which anyone else would just as readily have paid. But profits from commercial transactions, particularly luxury goods (even if at “fair market value”) do elicit a sense of gratitude, for the obvious reason that the customer might have gone somewhere else. This is especially true when the customer makes a point of patronizing the owner’s hotel “so I can tell the new president, ‘I love your new hotel!’”

That is precisely the state of affairs that the framers sought to prevent, by opting for a term that applies not merely to a small subset of the transactions that might elicit the recipient’s gratitude, but rather to the whole array. Contrary to the DOJ’s contention, “the term ‘Emolument,’ when read harmoniously with the rest of the Clause,” does not have “the natural meaning of the narrower definition of profit arising from an office or employ.” Read alongside the ban on “present[s],” the natural meaning entails a prohibition on the various transactions that induce the recipient to respond with gratitude.

In their white paper on conflicts of interest, Donald Trump’s lawyers claimed that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.” Since then, other commentators have also defended an “office-related” definition of the term (see, e.g., here, here, and here).

Blackstone does not support such a narrow reading. Occasionally, he refers to the emoluments of government officials, such as postmasters, civil magistrates, and naval seamen. But the significance of these public employment contexts must be interpreted cautiously, and on the whole they appear to be exceptional. The majority of Blackstone's usages of "emolument" involve benefits other than government salaries or perquisites. They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century Englishdictionaries.

So (a) lots of originalism in the emoluments clause debate; but (b) I have not heard any really good response to Seth Barrett Tillman's point that in the immediate post-ratification period key framers appeared to think the clause did not apply to the President.

Also, I think there needs to be a more direct explanation, fro the President's challengers, of why Congress cannot consent by acquiescence, as the Supreme Court held in a different context, in Dames & Moore v. Regan. Congress knows about the emoluments issue and has not raised any objection -- why is this not enough to show that it is not troubled by the President's action? (I think the answer is that Congress must act formally and that Dames & Moore was wrongly decided on this ground, but are non-formalists wiling to say that?).

06/22/2017

Stephen E. Sachs (Duke University School of Law) has posted Originalism Without Text (Yale Law Journal, forthcoming) on SSRN. Here is the abstract:

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution's words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren't fundamental to originalism, then originalism isn't fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.